2018 Civil Rights Report: Violating the First Amendment: Government Restrictions on Boycott, Divestment, and Sanctions

A central pillar of a thriving democracy is the right to free speech on issues of political, social, and economic importance. This value is enshrined in the First Amendment of our Constitution and is an integral part of the American ethos. The First Amendment protection extends to the right to boycott, and from 1773, when American colonists boycotted tea in protest of British taxation, to the Montgomery Bus Boycott against racial segregation in 1955, boycotts in support of human and civil rights have held an invaluable place in our nation’s history.

And yet, in 2017, eight states across the country adopted legislation or executive orders restricting the protected First Amendment rights of Americans who participate in the international Boycott, Divestment, Sanctions (BDS) movement. At a federal level, Congress continues its bicameral consideration of the “Israel Anti-Boycott Act,” a law that would effectively criminalize and penalize certain types of free speech on BDS.

Launched in 2005, BDS is an international campaign that applies pressure on Israel to comply with international law and challenges its illegal support for settlements on occupied Palestinian land through an academic, cultural, and economic boycott. The BDS movement’s methods are modeled on the successful movement against South African apartheid.

American citizens and persons in the U.S. have the constitutionally protected First Amendment right to engage in political, social, and economic protest in the form of boycotts, including BDS. Legislation and policy advanced at state and federal levels that seeks to silence these voices is unconstitutional. In 1982, the United States Supreme Court upheld that boycotts which “bring about political, social and economic change” are unquestionably protected by the First Amendment. In NAACP v. Claiborne Hardware Co., the Court ruled that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

State Restrictions on First Amendment Rights

As support for the BDS movement grows in the U.S., several states have either adopted, or attempted to adopt, legislation, resolutions or executive orders that impose restrictions. This is done through one or more of the following:

Declaring the BDS movement to be disfavored by the state.

Declaring that Israel holds a special relationship or status with the state.

Requiring citizens and companies that wish to conduct any business with the state government to certify that they do not engage in boycotts against Israel or “strategic partners.”

Creating blacklists of companies that boycott Israel and “Israeli controlled territories.” (This is a reference to unlawfully occupied Palestinian land.)

Prohibiting the direction of state funds to blacklisted companies.

Prohibiting investment by public entities in the blacklisted companies.

Imposing penalties on companies for their support of economic boycotts undertaken by foreign and non-state actors, like the United Nations, with businesses in possession of unlawful settlements on occupied Palestinian land.

Restricting funds for publicly funded state colleges and universities, and student groups at these institutions, if they support boycotts of foreign countries, like Israel.

CAIR and numerous national civil rights groups forcefully reject local, state, or federal government bodies making the receipt of disaster aid conditional on the curtailment of constitutionally protected First Amendment rights. This is nothing less than authoritarian and contrary to our constitution.

These government restrictions are unconstitutional and contrary to American values. The Supreme Court ruled under the “unconstitutional conditions” doctrine that government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests – especially, his interest in freedom of speech.” Yet that is precisely what these restrictions do.

Additionally, the restrictions counter, undermine, and alienate the increasing number of American businesses, major church denominations, charitable foundations, university student governments, labor unions, and investors who have either vocalized support for BDS or engaged in financial measures against companies and institutions complicit in human rights abuses in Israel.

Local, state, and federal governments should not make determinations about which views constitute acceptable political speech. This toes the line of authoritarianism and is fundamentally counter to the First Amendment-protected right to freely express political views – however controversial or unpopular they may be. Support for such legislative restrictions are wholly un-American and unconstitutional.

Recommendations

Individuals:

In states where such policies have been adopted, work with like-minded people, civil society groups, and elected officials to overturn these measures.

In states where such policies have not yet been adopted, set up meetings with your elected officials to inform them of the harmful effects these measures have on the right to free speech and boycott.

Email editors of national media outlets at This email address is being protected from spambots. You need JavaScript enabled to view it., This email address is being protected from spambots. You need JavaScript enabled to view it., and This email address is being protected from spambots. You need JavaScript enabled to view it. to speak out against anti-BDS resolutions, laws, and executive orders. These illegal actions curtail free speech and are contrary to American values.

Utilize every platform to speak out against unconstitutional nature of anti-BDS resolutions, laws and executive orders. Contact your local CAIR chapter at cair.com/chapters to determine how you can get involved.

Elected Officials:

Utilize every opportunity to make public statements against anti-BDS resolutions, laws, and executive orders.

Do not restrict the First Amendment protected rights of Americans to engage in any boycott campaign.